State v. Litschewski

1999 SD 30, 590 N.W.2d 899, 1999 S.D. LEXIS 37
CourtSouth Dakota Supreme Court
DecidedMarch 10, 1999
DocketNone
StatusPublished
Cited by7 cases

This text of 1999 SD 30 (State v. Litschewski) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Litschewski, 1999 SD 30, 590 N.W.2d 899, 1999 S.D. LEXIS 37 (S.D. 1999).

Opinions

MILLER, Chief Justice.

[¶ 1.] Richard Litschewski appeals his convictions of third-degree rape, first-degree rape, and sexual contact with a minor child under sixteen. We affirm.

FACTS

[¶ 2.] On March 21, 1997, Litschewski was indicted in Walworth County, South Dakota, on one count of third-degree rape.1 On June 23, 1997, he was arraigned on an amended indictment charging two additional counts, one count of first-degree rape and one count of sexual contact with a minor child under sixteen.2 The charged crimes, which occurred between September 8, 1989, and April 1996, involved victims who were the young daughters of Litschewski’s friends.

[¶ 3.] The first count of the indictment, third-degree rape, stemmed from Litschew-ski’s sexual acts against J.A, an eleven-year-old female. J.A. testified that she had known Litschewski most of her life, and that her father was his long-time friend. She stated that on July 3, 1991, she and her family attended a party at the Litschewski home. During the party, she fell asleep on the living room floor. When it came time to leave, J.A’s mother decided that rather than awaken her, she would allow J.A. to spend the night. J.A. testified that later that night she awoke and found that her underwear had been pulled down and Litschewski was touching her back and behind. She was lying on her stomach and Litschewski told her to roll [901]*901over onto her back. He put his hands under her shirt, fondled her breasts, and attempted, about five times, to penetrate her vagina with his penis. He achieved partial penetration. When she began crying, Litsehew-' ski told her to be quiet, so that no one else would hear her. He informed her that she should not tell anyone about what had occurred. He then left the room.

[¶ 4.] The charges in counts two and three of the indictment, first-degree rape and sexual contact with a minor child under sixteen, stemmed from Litschewski’s sexual acts against C.H., his goddaughter. C.H. testified that the rape occurred on September 8, 1989, when she was seven years old, and Litschewski was a guest in her family’s home. She stated that, at the time of the incident, she was in her upstairs bedroom sitting on the floor playing with her toys. Litschewski, who came upstairs to use the restroom, entered C.H.’s bedroom and sat on the floor beside her. After sitting down beside her, he lifted her nightgown, put his hand inside her underwear, and then fondled and digitally penetrated her vagina. She told him it hurt and tried to push his hands away. He assured her it would not continue hurting, and he continued the sexual act. He ended the sexual contact when C.H.’s father yelled up the stairs to ask Litschewski what was taking him so long. Before returning downstairs, he handed C.H. two dollars and told her not to tell anyone about what had occurred.

[¶ 5.] C.H. testified that seven years later, Litschewski again had sexual contact with her. In April 1996, Litschewski offered to drive her to her grandmother’s home. She stated that she was hesitant to accept his offer, but did agree to riding with him. When they were approximately one block from her grandmother’s house, Litschewski pulled the car over, grabbed her head and started to French-kiss her. He then put his hand up her shirt, fondled her breasts, and made remarks about her breasts and his desire to marry her. He ended this contact when she informed him that her grandmother would be waiting for her. He told her that this incident was to be kept their secret.

[¶ 6.] The trial on these charges commenced on September 29, 1997. Litschewski was found guilty on all three counts. He was sentenced to seven and one-half years in the state penitentiary for the third-degree rape, twelve and one-half years for the first-degree rape, and seven and one-half years for sexual contact with a minor, with the sentences to run consecutively. He was also ordered to pay restitution to the victims.

[¶ 7.] On appeal, Litschewski raises the following issues;

1. Whether the trial court erred in prohibiting Litschewski’s counsel from asking J.A. about her allegation that only hours before the alleged rape Lit-schewski forcibly kissed her.
2. Whether attempted impeachment by the prosecutor of Litschewski’s military service record was improper and prejudicial.
3. Whether questioning by the prosecutor of both Litschewski and his wife about his medical condition (genital warts) violated the spousal communication privilege and prejudiced his right to a fair trial.

STANDARD OF REVIEW

[¶ 8.] We review a trial court’s findings of fact under the clearly erroneous standard. State v. Westerfield, 1997 SD 100, ¶ 8, 567 N.W.2d 863, 866 (citations omitted). A trial court’s evidentiary rulings “are presumed correct and are reviewed under an abuse of discretion standard.” State v. Larson, 1998 SD 80, ¶ 10, 582 N.W.2d 15, 17 (citation omitted).

DECISION

[¶ 9.] 1. The trial court did not err when it prohibited Litschewski from questioning J.A. about her allegation that he forcibly kissed her only hours before the alleged rape occurred.

[¶ 10.] During two different stages of the proceedings, Litschewski made motions to offer evidence concerning an alleged prior act between he and J.A.3 He claims that J.A. informed law enforcement officials that on [902]*902the date the rape occurred he had attempted to kiss her. In making his argument to the court, he stated:

And if she went over to his house and agreed to sleep with him and knew she was going to spend the night and didn’t tell her parents about these previous French kisses, that would go to credibility as to whether or not these kisses had happened and would go to credibility as to whether or not this rape occurred. That’s the purpose for that type of information. Because I can show that she made plans to sleep at this house and slept at this house knowingly that night. She didn’t just fall asleep_What it does, is it would show no little girl would go spend the night at someone’s house if the guy was trying to French-kiss them in the afternoon.

The court denied both motions finding that, if the evidence was as Litschewski suggested, it would only pertain to the matter of consent; therefore, it was not relevant.

[¶ 11.] Litschewski argues that the trial court erred in denying the admission of the other act evidence. He claims the evidence was relevant and should have been presented to the jury, so that the jurors could determine its significance when assessing J.A.’s credibility. We disagree.

[¶ 12.] This court has stated that “[questions of the relevance of proffered testimony are committed to the discretion of the trial court and this Court will not reverse its ruling absent an abuse of discretion.” State v. Olson, 408 N.W.2d 748, 752 (S.D.1987) (citing State v. McDowell, 391 N.W.2d 661 (S.D.1986)). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1;

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State v. Litschewski
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Bluebook (online)
1999 SD 30, 590 N.W.2d 899, 1999 S.D. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-litschewski-sd-1999.